McLaughlin v. McLaughlin

• Citation: 29 S.E.2d 1,126 W.Va. 498
• Decision Date: 15 February 1944
• Docket Number: 9484.
• Parties: McLAUGHLIN v. McLAUGHLIN.
• Court: West Virginia Supreme Court

29 S.E.2d 1

126 W.Va. 498

McLAUGHLIN v. McLAUGHLIN.

No. 9484.

Supreme Court of Appeals of West Virginia.

February 15, 1944

Musgrave & Blessing, of Pt. Pleasant, for appellant.

C E. Copen, of Winfield, for appellee.

KENNA Judge.

C. E McLaughlin brought this divorce proceeding against his wife Minnie McLaughlin, and from an absolute decree in his favor she appeals. The bill of complaint prays for an absolute divorce because of the wife's alleged cruel and inhuman treatment of the husband consisting of cursing and nagging and falsely accusing the plaintiff of improper relationships with other women, all of which became so unbearable that it rendered the plaintiff unfit to perform his usual duties as a laborer and made it necessary for him to leave his home in order to retain his employment. The sufficiency of the bill of complaint was not raised before the trial chancellor, and the assigned grounds of error relate to the effect given the evidence in dismissing the defendant's cross-bill and answer in which she sought an independent allowance for her support and maintenance, and in granting the plaintiff the relief for which he prayed, the appellant asserting that the proof fails to establish any ground for an absolute decree.

Of course, in a divorce proceeding, since a decree cannot be entered upon a bill taken for confessed, it is the duty of the trial judge to consider the sufficiency of the evidence even when that of the bill of complaint is not questioned. Therefore, we will consider only the matters passed upon in the court below.

C. E McLaughlin and the defendant, Minnie McLaughlin, were married in Kanawha County on December 4, 1937. She had been divorced from her first husband a few years before and was about forty years of age. McLaughlin was a widower living with his two sons, Waldo, aged fifteen, and Albert, aged twenty, in a seven room story-and-a-half dwelling located in the unincorporated village of Red House, Putnam County, directly across the Kanawha River from Winfield, and situate upon approximately one acre of land. This home had been purchased jointly by McLaughlin and his former wife who had died intestate, so that at the time of his second marriage the property was owned in common by McLaughlin on the one hand, and his two sons on the other, subject to his dower interest in their half. After the marriage the couple began keeping house in McLaughlin's Red House home, where they were admittedly quite content for a period of at least six months at which time there seemed to develop an attitude of contrariety between Waldo McLaughlin and Mrs. McLaughlin. Many altercations arose, the intensity of which seemed to accumulate but did not become consequential until after Albert McLaughlin left the home at Red House early in the year 1940 for the purpose of going to live with McLaughlin's mother at Nitro, evidently an elderly woman who needed his care.

There is considerable detailed testimony by neighbors and others as to frequent arguments between husband and wife accompanied by shouting and profanity, and of one occasion upon which McLaughlin was falsely berated for an improper interest in another woman. There is no proof to sustain the charge that McLaughlin suffered ill health or undue nervousness...